U.S. Merit Systems Protection Board 
Case Report for July 15, 2016 

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Note:  These summaries are descriptions prepared by individual MSPB employees. They do not represent official summaries approved by the Board itself, and are not intended to provide legal counsel or to be cited as legal authority.  Instead, they are provided only to inform and help the public locate Board precedents.

BOARD DECISIONS

Appellant:  Dannice E. Clark
Agency:  United States Postal Service
Decision Number:  2016 MSPB 26
Docket Number:  AT-0353-16-0120-I-1
Issuance Date:  July 12, 2016
Appeal Type:  Restoration to Duty After Recovery from Compensable Injury

Restoration to Duty
 - Jurisdiction
 - Nonfrivolous Allegations

    The appellant petitioned for review of an initial decision that dismissed her restoration appeal for lack of jurisdiction.  The appellant alleged that the agency improperly denied her restoration to duty as someone who has partially recovered from a compensable injury.  The administrative judge informed the appellant of the jurisdictional burdens of proof for restoration claims and directed the appellant to file evidence and argument to meet her jurisdictional burden.  After the appellant failed to respond within the allotted time, the judge dismissed the appeal for lack of jurisdiction.  On review, the appellant argued that her initial filing was sufficient to satisfy her jurisdictional burden.

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision:

1. To establish jurisdiction and obtain a hearing on the merits, an appellant is required to make nonfrivolous allegations that:  (1) she was absent from her position due to a compensable injury; (2) she recovered sufficiently to return to duty on a part-time basis or in a position with less demanding physical requirements than those previously required of her; (3) the agency denied her request for restoration; and (4) the agency's denial was arbitrary and capricious.  

2. Even if the appellant's initial filing might be said to have satisfied the first three jurisdictional elements, it did not satisfy the fourth:  nonfrivolous allegations that the denial of restoration was arbitrary and capricious.  In so finding, the Board clarified the distinction between nonfrivolous and pro forma allegations for restoration cases.  To present nonfrivolous allegations and satisfy the jurisdictional burden in a restoration appeal, an appellant must present material and plausible assertions of fact that, if true, could establish that the agency breached its substantive restoration obligations, including any restoration obligations it voluntarily adopted.  A vague, conclusory, or unsupported allegation, such as one that essentially repeats the legal standard, without more, is pro forma and insufficient.  



Appellant:  Lawrence E. Mattison
Agency:  Department of Veterans Affairs
Decision Number:  2016 MSPB 27
Docket Number:  DC-0752-15-1058-I-1
Issuance Date:  July 14, 2016
Appeal Type:  Adverse Action by Agency
Action Type:  Suspension - Indefinite

Adverse Action Charges - Indefinite Suspension
Retaliation for Protected Activity
Due Process
Harmful Procedural Error

    The appellant petitioned for review of an initial decision that sustained his indefinite suspension.  During the first half of 2015, local police arrested the appellant on charges of stalking and violation of a protective order.  The alleged victim was another agency employee.  In July 2015, the agency proposed the appellant's indefinite suspension, citing his arrest and stating that there was reasonable cause to believe that he might be guilty of a crime for which a sentence of imprisonment might be imposed.  After considering the appellant's response to the proposal, the agency's deciding official sustained the indefinite suspension as did the administrative judge on appeal.

Holdings:  The Board denied the appellant's petition for review and affirmed the initial decision:

1. The appellant did not present any substantive argument that the agency failed to prove the elements for an indefinite suspension.  He instead relied on several affirmative defenses.

2. The administrative judge properly denied the appellant's claim of retaliation under 5 U.S.C.  2302(b)(9)(A)(ii), i.e., retaliation for the exercise of any appeal, complaint or grievance right granted by any law, rule, or regulation, other than one related to whistleblowing.  The protected activity here was filing two appeals within the agency:  an Information Security Office (ISO) appeal that alleged that a number of individuals had accessed his medical records without authorization; and a FOIA appeal, which involved his request for information gathered by police for their investigation.

a. For an appellant to prevail on this affirmative defense, if he does not allege reprisal for EEO activity, he must show that:  (1) he engaged in protected activity; (2) the accused official knew of the activity; (3) the adverse action under review could have been retaliation under the circumstances; and (4) there was a genuine nexus between the alleged retaliation and the adverse action.  To establish a genuine nexus, an appellant must show that the adverse action was taken because of his protected activity, which requires the Board to weigh the severity of the appellant's alleged misconduct against the intensity of the agency's motive to retaliate.

b. The appellant's alleged misconduct, being arrested for violating a protective order and stalking another agency employee, is severe.  By comparison, there is little reason to believe that the agency had an intense motive to retaliate for the appellant's ISO or FOIA appeals.

3. The essential requirements of constitutional due process are notice of the charges, an explanation of the agency's evidence, and an opportunity for him to present his account of events.  The appellant did not explain how these rights were violated.

4. According to the appellant, the agency committed harmful error by leaving him in an administrative leave status for a few months before imposing the indefinite suspension, and by imposing the indefinite suspension immediately after his period of administrative leave.  Neither of these constitutes harmful error.  The Board also rejected the appellant's contention that 5 C.F.R.  752.404(d) imposes a 10-day maximum for nonduty status.  




COURT DECISIONS

The U.S. Court of Appeals for the Federal Circuit issued nonprecedential decisions in the following cases:

Gray v. Merit Systems Protection Board, No. 2016-1223 (July 8, 2016) (MSPB Docket No. DE-0752-14-0450-I-1) (affirming the Board's decision, which dismissed Gray's appeal under the doctrine of laches)

Holmes v. Merit Systems Protection Board, No. 2016-1551 (July 8, 2016) (MSPB Docket No. PH-0752-16-0076-I-1) (affirming the Board's decision, which dismissed Holmes's appeal for lack of jurisdiction on the basis that she failed to establish that she is an "employee" entitled to appeal adverse actions)

Jones v. Department of Health & Human Services, No. 2016-1552 (July 8, 2016) (MSPB Docket No. DE-4324-16-0128-I-1) (affirming the Board's decision, which denied Jones's USERRA claims as barred under the doctrine of res judicata)

     

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